Translation of the Japanese Original

Judgment (Court 802) delivered at 11am on March 17, 2021
Case No. (Wa) 267 of 2021 Case re Claim for Damages(Second Civil Division, Three Judge Panel: Chief Judge Tomoko Takebe, Judge Ichita
Matsunaga, Judge Yuya Kawano)
Plaintiffs: Plaintiffs Nos 1 to 6
Defendant:
The State
Decision
1.

The Plaintiffs’ claims are hereby dismissed.

2.

The costs of the litigation shall be borne by the Plaintiffs.

Summary of the Judgment
1.

The provisions of the Civil Code and the Family Register Act which do not recognize
marriage between same-sex couples (the “Provisions”) do not violate Paragraphs 1 and
2 of Article 24 of the Constitution1.

2.

The Provisions do not violate Article 13 of the Constitution2.

3.

The fact that the Provisions fail to provide same-sex persons with any legal means tobenefit from any of the legal benefits that arise from marriage exceeds the scope ofdiscretion granted to the legislature and, to such extent, the Provisions violate Article 14,
Paragraph 1 of the Constitution 3.

4. In the context of the application of Article 1, Paragraph 1 of the State Redress Act, thefact that the Provisions have not been amended or repealed is not illegal 4.

Translator’s note:
Article 24.
1. Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual
cooperation with the equal rights of husband and wife as a basis.
2. With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matterspertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity andthe essential equality of the sexes.
2Translator’s note:
Article 13.
All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit ofhappiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration inlegislation and in other governmental affairs.
3
Translator’s note:
Article 14. All of the people are equal under the law and there shall be no discrimination in political, economic
or social relations because of race, creed, sex, social status or family origin.
4
Translator’s note:
Article 1 (1) When a public officer who exercises the public authority of the State or of a public entity has, in thecourse of his/her duties, unlawfully inflicted damage on another person intentionally or negligently, the State or public
entity shall assume the responsibility to compensate therefor.
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SUMMARY OF FINDINGS AND REASONS
The summary of this Court’s judgment is as follows.
correspond to the numbering in the original judgment.

The numbering below does not

1.

The issue in this case is whether the Provisions which limit marriage to heterosexual
couples violate Article 13, Article 14, Paragraph 1, and/or Article 24 of the Constitution;
and whether, in the context of the application of Article 1, Paragraph 1 of the State
Redress Act, the fact that the Provisions have not been amended or repealed should beconsidered illegal.

2.

The summary of findings by the Court, based on evidence presented to it, is as follows:(1)

Sexual orientation refers to the attraction a person feels towards another person ina sensual, emotional or sexual sense. A person who has such feeling of love andsexual attraction towards a person of the opposite sex is heterosexual, and a person
who has such feeling of love and sexual attraction towards a person of the samesex is homosexual. Such feelings of attraction cannot be chosen or changed at
one’s own will.

(2)

During the Meiji Period 5, homosexuality was considered a mental disorder thatshould be treated and was strictly prohibited. In addition, the Meiji Civil Codedefined marriage as a union between a man and a woman for the purpose of living
jointly for life, consistent with the moral and social requirements. Under thisview of the Meiji Civil Code, marriage was for a man and woman to live together
as husband and wife and not necessarily for the sole purpose of producing children.

(3)

From the end of World War II to around 1980, homosexuality continued to beregarded as a mental disorder that needed to be treated, and in the field of education,homosexuality was considered as an act that violated sound social morals and apotential disruption to the social order on sexuality. In 1947, the current Civil
Code was introduced, but marriage was interpreted to mean the spiritual andphysical union between a man and a woman to form a marital relationshipconsistent with social norms, and same-sex marriage was naturally not recognized.

(4)

Since 1973, however, the American Psychiatric Association and the World HealthOrganization have demonstrated that homosexuality is not a mental disorder. InJapan, similar medical views began to prevail from around 1981.

(5)

Internationally, more and more countries have introduced same-sex marriage or theRegistered Partnership System. In some countries, courts have declared that thefailure of their legal system to recognize same-sex marriage is unconstitutional.
In Japan, since 2015, the number of local governments that have introduced theRegistered Partnership System 6 has also increased.

(6)

Opinion surveys conducted since 2015 show that approximately 50 percent of thosesurveyed react positively towards same-sex marriage or affording legal protections

Translator’s note: The Meiji Period in Japan refers to the period from 1868 to 1912.
Translator’s note: The so-called “Partnership Registration System” in Japan is a social recognition of the loving
relationship between same-sex couples but does not confer any of the legal benefits of marriage.
562Translation of the Japanese Original

to same-sex couples. By age group, however, while people under the age of 60
generally exhibit a positive attitude, reactions from those over 60 are mostlynegative.
3.

4.

Summary of the analyses by this Court as to whether the Provisions violate Articles 24
and/or Article 13 of the Constitution is as follows.
(1)

Considering the purposes of Article 24, Paragraph 1 of the Constitution, the socalled freedom of marriage should be accorded proper respect. However, in theearly days of the post-war period when the Civil Code was amended and theConstitution enacted, homosexuality was considered a mental disorder and samesex marriage was considered impermissible. In light of this background as wellas the use of the term “both sexes” in Article 24 - a term that implies the union
between a man and a woman, Article 24 should be considered as providing forheterosexual marriage and not same-sex marriage.

(2)

Article 24, Paragraph 2 of the Constitution, which is an individual provision
addressing matters relating to marriage and family, should be interpreted as
granting to the legislature the primary responsibility to establish specific systems[relating to marriage and family matters] 7 using its reasonable legislative
discretion. Considering such purpose, it is difficult to interpret Article 13, a
general human rights provision, as guaranteeing a right to a specific system
regarding marriage and family matters of same-sex couples, including same-sex
marriage. It is also difficult, substantively, to derive a specific system pertaining
to same-sex marriage solely through the interpretation of Article 13.

(3)

Accordingly, we do not find that the Provisions violate Articles 24 or 13 of theConstitution.

Next, the following is a summary of this Court’s reasoning in relation to whether theProvisions violate Article 14 of the Constitution.
(1)

Based on the foregoing interpretation of Articles 24 and 13 of the Constitution, thelegislature has broad discretion in determining marriage and family matters in
relation to same-sex couples.

(2)

According to the provisions of the Civil Code and the Family Register Act,marriage is a legal act that, simultaneously and subsequently, confers
comprehensive legal benefits (hereinafter referred to as “Legal Benefits ofMarriage”) tied to the status created by a relationship, namely the creation of afamily relationship between the parties to the marriage and their family, publiccertification of the relationship by means of the family register and a legal statuscomprising of a variety of legal rights and obligations.
Heterosexual couples can avail themselves of the Legal Benefits of Marriage, but
same-sex couples cannot, and that constitutes differential treatment (hereinafterreferred to as “Differential Treatment”), in that the latter are denied the Legal
Benefits of Marriage. Therefore it is necessary to consider whether such

7Translator’s note: Bracketed words added by translator.

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Translation of the Japanese Original

differential treatment has a reasonable basis.
Under the Provisions, a homosexual person can legally marry a person of theopposite sex; however, even if a homosexual person were to legally marry a personof the opposite sex, such marriage, in most circumstances, would not embody thefundamental essence of marriage, and cannot be construed as marriage
contemplated by Article 24 of the Constitution and the Provisions. Since ahomosexual person cannot be regarded as enjoying the same legal benefits as aheterosexual person, we cannot deny that differential treatment on the basis ofsexual orientation exists.
(3)

(i)

Sexual orientation is a kind of inherent characteristic of a person which isdetermined irrespective of one’s own will. In that sense, it is equivalent tosex and race. Whether differential treatment based on characteristics of thisnature has a reasonable basis needs to be considered carefully.

(ii)

Considering various circumstances, including that the institution of marriage
has survived since the Meiji Civil Code and that many couples still marry tothis day, it can be concluded that the Legal Benefits of Marriage throughmarriage is an important legal benefit. Considering that the only difference
between heterosexual and homosexual persons is their sexual orientation andsexual orientation cannot be chosen or changed by one's own will, there isno basis for differentiating between heterosexual persons and homosexual
persons with respect to the Legal Benefits of Marriage, and both homosexual
persons and heterosexual persons must be able to equally enjoy such legal
benefits.

(iii) While both the Meiji Civil Code and the current Civil Code have beeninterpreted, as a matter of course, as not allowing same-sex marriage, thiswas because, at the time the legislation was enacted, homosexuality wasconsidered a mental disorder and homosexual couples were considered
incapable of consummating normal marital relationships. By around 1992,
however, it became established knowledge that homosexuality is not amental disorder and there is no longer any scientific or medical basis fordenying same-sex marriage.
(iv) In light of the provisions of the current Civil Code, the background toamendment to the Civil Code and the purpose of marriage under the Meiji
Civil Code, the important purpose of the Provisions is not only to provide
legal protection to cohabitating heterosexual couples who bear and raisechildren, but also to cohabitating heterosexual couples irrespective ofwhether or not they have a child. Article 24 of the Constitution likewise
cannot be interpreted to deny all legal protections to same-sex couples thatare in a cohabitating relationship. Accordingly, neither the Provisions nor
Article 24 of the Constitution can be a basis to deny any and all legal
protection to same-sex couples.
(v)

In Japan, both the increasing number of local governments that haveintroduced the Registered Partnerships System and the positive responses inpolls related to same-sex marriage and providing legal protection to samesex couples demonstrate the increasing public awareness of the need to4

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eliminate differential treatment on the basis of sexual orientation.
also the case in other countries.

This is(vi) On the other hand, the perception that homosexuality is a mental disorderand must be prohibited was prevalent until around 1980 and was also awidely held belief in the area of education. One of the reasons why many
people in the relatively older age group of 60 and above have formed anegative opinion toward same-sex marriage is attributable to this widely-heldperception which has contributed to the general public’s negative opinion
and views on same-sex marriage. In light of the foregoing, the fact that not
an insignificant number of citizens hold such negative opinions and values
is something that the legislature may take into consideration when exercising
its legislative discretion.
However, it is now established knowledge that homosexuality is not a mental
disorder and cannot be chosen or changed at one’s own will. To say thathomosexual couples cannot even partially enjoy the Legal Benefits ofMarriage, which is an important legal benefit, without the understanding or
tolerance of the dominant heterosexual majority is a glaring lack ofprotection of homosexual persons compared to heterosexual persons. Taking
into consideration the growing public awareness of the need to eliminate
discriminatory treatment on the basis of sexual orientation and based on
similar situations prevailing in other countries, the fact that not an
insignificant number of citizens hold negative opinions and values toward
same-sex marriage should only be given limited weight when considering
whether there is any reasonable basis for not providing homosexual persons
with legal means to enjoy, at least partially, the Legal Benefits of Marriage.
(4)

Matters pertaining to marriage and family in relation to same-sex couples cannot
be unequivocally determined and must therefore await the legislative discretion of
the legislature.
If the legislature, within its broad legislative discretion,
determines that the Provisions do not apply to same-sex couples, taking into
consideration that matters relating to marriage and family require a comprehensive
determination based on various social factors, including national tradition andpublic sentiment, and consideration of the overall principles that govern maritaland parent-child relationships of the relevant era, as well as the existence of not
an insignificant number of citizens that hold negative opinions and values toward
same-sex marriage, such determination cannot be considered forthwith as lacking
a reasonable basis.
However, the only difference between heterosexual persons and homosexual
persons is their sexual orientation, which cannot be chosen or changed by one’s
own will and there should be no difference in legal benefits that can be enjoyed bypersons of any sexual orientation. Notwithstanding this, no legal means havebeen made available to homosexual persons to enjoy even a part of the Legal
Benefits of Marriage. When considering whether the failure to even partiallyprovide Legal Benefits of Marriage has any reasonable basis, the growing desire
in Japan and other countries to eliminate the distinction between homosexual andheterosexual persons should be taken into consideration, the existence of not an
insignificant number of citizens holding negative opinions and values toward
same-sex marriage should be given limited weight.
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Translation of the Japanese Original

Based on the foregoing, this Court must conclude that the failure of the Provisions
to offer legal means to same-sex couples to enjoy, even partially, the Legal Benefitsof Marriage, exceeds the legislative discretion of the legislature and that theDifferent Treatment, to that extent, is discriminatory treatment that lacks areasonable basis.
(5)

Accordingly, the Provisions, to the extent described above, violate Article 14,
Paragraph 1 of the Constitution.

5. The following is a summary of the consideration by this Court as to whether, in thecontext of the application of Article 1, Paragraph 1 of the State Redress Act, the fact that
the Provisions have not been amended or repealed should be considered illegal.

6.

(1)

Generally speaking, introduction of same-sex marriage and other similar systems
in countries outside Japan began to increase after 2000. However, the adoptionof the Registered Partnership System in Japan lagged behind and only began afterOctober 2015. In addition, according to recent surveys, the majority of people in
the relatively older age group of 60 and above hold negative views, and accordingly
it may be inferred that the positive views towards same-sex marriage became themajority view relatively recently. Furthermore, according to the evidence,
discussion in the Diet 8 regarding protection of same-sex couples did not begin
until 2015. In addition to these circumstances, in light of the fact that there wasno judicial decision on the constitutionality of the lack of a system for same-sex
marriage, this Court must conclude that it was not feasible for the Diet to
immediately recognize that the Provisions are in violation of Article 14, Paragraph
1 of the Constitution.

(2)

Accordingly, in the context of the application of Article 1, Paragraph 1 of the State
Redress Act, the fact that the Provisions have not been amended or repealed is notillegal.

Based on the foregoing, this Court has determined that there is no basis to uphold thePlaintiffs’ claims.
[END]

8

Translator’s note: the ‘Diet’ is Japan’s national bicameral legislature.

6